1. Transparency & Platform Governance
Margot Kaminski
Colorado Law

2. Transparency & Platforms
U.S. regulation of platforms has emphasized– and continues to emphasize— transparency.
Three parts to talk:
Examples
Why transparency?
Transparency today

3. Transparency in Tech Policy
Transparency at core of a number of tech policy approaches/debates
Privacy:
Notice aspect of notice and choice. See, e.g., COPPA (1998/2000)
CalOPPA (2004)
Copyright:
512 Notice and takedown
FCC’s 2010 Open Internet Transparency Rule
Self-regulation
Google Transparency report 2010, Twitter 2012
NSLs, ECPA gag orders, “warrant canaries”
COPPA requires:MUST post privacy policies describing what info is collected, how used, disclosure practices. Notice.
Must obtain verifiable parental consent for
collection, use or disclosure of personal info from children
Cannot condition child’s participation in game or receipt of a prize on disclosure of more PII
If parent requests it, must provide access to types of PII collected
Parent has right to refuse to permit further use or collection of PII from child
CALOPPA requires privacy policy
These discussions on the Senate floor prompted Senator John Ashcroft to add an amendment giving consumers protection from inaccurate or mistaken takedowns of their uploaded material.
While Senator Ashcroft “applauded the efforts of the affected industries to resolve the [I]SP liability issue,” he also worried about “protection for the small user, not just for the big content promoters.”
These discussions and compromises produced the notice and takedown system and the counter notification system
FTC’s Open Internet Transparency Rule: ISPs are required to report how they manage congestion, store traffic information, rate their services and handle other practices. This information must be presented in an easily accessible space, such as on the company's website. The new proposal adds four reporting categories to this list: blocking, throttling, affiliated prioritization and paid prioritization. In each case, the ISP is expected to disclose the practice and provide details about exactly which sites or streams are being blocked, degraded or boosted

4. Why Transparency? Why transparency? Rationales given for transparency
Bigger picture reasons

5. Transparency Rationales
Two types of rationales given for transparency:
(1) Instrumentalist/consequentalist:
To correct errors
Fix info asymmetries
Increase corporate & government accountability
towards better alignment with law/public values
(2) Deontological
Human dignity
Human autonomy
“fairness” when you have big systems with big impacts on lives of individuals

6. Why Transparency? Big Picture
Bigger picture examination of why:
Analogy
Legal process ported into private actions with significant outcomes
Due process principles, open government principles, APA -> FIPPs
Regulatory style
“new governance” or collaborative governance
…“paper” governance? Or effective?
Anti-precautionary principle: first show us the harm

7. Why Transparency? The Big Picture
Legal culture
i. General
US focus on liberal actors
Ii. Specific
Regulatory path-determinism, eg. FTC’s focus on public promises made
Law
First Amendment
Contract
Tort

8. Transparency Today A. More of the same We need more disclosure
Privacy regimes
Algorithmic accountability/ “right to explanation”
B. Backlash
Transparency gaming
Obfuscation through information
Information capture: both outflow and input
C. Transparency Straw Man
Individual transparency doesn’t work, therefore… no transparency
A is CCPA somewhat
Backlash: Kwoka’s work, in context of gov transparency;

9. Thinking about Transparency…
More critical conversations needed:
What is transparency for?
What kinds of transparency?
who gives what to whom, how, why?
How is transparency made effective?
What other features of a regulatory system make transparency do what it’s intended to do?
When is transparency effective by itself (conforming effect) versus when does it need to be accompanied by sanctions?